No Apportionment of Fee Work Required Where Both Contract and Tort Claims Encompassed Within a Broad Fees Clause.
Above: Beware the Jabberwock, my son! Sir John Tenniel, illustrator.
Beware of the broadly worded fee clause, because it likely will give rise to fee entitlement no matter whether contract or tort theories are alleged and recovered upon.
In a cremation intermingling case (including allegations that gold dental filings were held without authorization), the defense prevailed in a dispute where there was a broadly-worded fees clause recovering failure to properly identify or pick up cremated remains.
Above: Corpse on funeral pyre, India, 1907. Library of Congress.
The language in this clause was broad, allowing the defense to recover fees for prevailing on either contract or tort claims in Warden v. Dudley Hoffman Mortuary, Case No. B229405 (2d Dist., Div. 6 May 7, 2012) (unpublished). The lower court awarded $107,150.09 out of a requested $117,120.09 in trial fees and all of the requested $40,632 in appellate fees for successfully reversing an earlier denial of fees altogether. No apportionment was required given the broad language at issue.
The billing records submitted by the defense in support of the fee award were sufficiently detailed, showing tasks, the dates of tasks, time involved, and 10-minute incremental billing. Defense counsel also did a smart thing, withdrawing $9,700 in claimed fees for travel time and expenses so as to make the request more palatable to the trial court--something “which, of course, redounded to [losing plaintiff’s benefit]” and expenses reduced by the lower court giving most of the other requests by the defense.